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17 Admin. L. News 1 (1991-1992)

handle is hein.journals/admreln17 and id is 1 raw text is: ADMINISTRATIVE LAW NEWS Fall 1991 LAW NV V ol. 17, No. 1 The Supreme Court's Rold in Shaping Administrative Law by Timothy B. Dyk* When Ernie Gellhorn asked me to make this presentation, he chose the title. The more I thought about it, the more convinced I became that the sub- ject ought to be the role of the Supreme Court in not shaping administrative law. For surely one of the most important developments in administrative law in the last several decades has been the Supreme Court's Chevron decision, under which the Supreme Court will defer to the agency's interpretation of its own governing statute when the statute is ambigu- ous and the agency's construction is reasonable. This reflects a conscious refusal on the part of the Su- preme Court to play its traditional role in interpret- ing federal statutes. It represents, as Professor Sunstein has noted, a kind of counter-Marbury. Then-Judge Starr described Chevron as a case which all appellate judges these days bear firmly in mind in reading statutes. And they do. Chevron has had an enormous impact upon challenges to agen- cies: two terms after Chevron, Judge Stanf noted that in the Supreme Court Chevron has been employed with regularity, and in all cases save one the agency won the case. While the agency record in the past two terms is more mixed, the centrality of Chevron to review of administrative agencies continues. Chevron receives not only the attention of law pro- fessors and the courts. Congress itself has held hear- ings to consider whether the Chevron interpretive principle should be altered, and even the public pays attention to Chevron. On July 18, 1 was present when Walter Dellinger con- demned Chevron before a In TT cheering throng of several Fall Meeting Highlights *Partner, Jones, Day, Reavis & ACUS Agenda Demonst Pogue. This article is an abridged Breadth of Administra version of a presentation made Section Calendar ....... at the 1991 ABA Annual Meet- Supreme Court News.. ing in Atlanta. The author very 1991-92 Section Directo much appreciates the assistance News from the States of Peter Wang, a summer asso- Nh ciate at Jones, Day, Reavis & Recent Articles of Interei Pogue, who contributed much of Energy & Environment the research for this piece. hundred. That might have been due to the use of Chevron in Rust v. Sulltva, since these assembled were about to lobby for a legislative change to the law upheld in that case, but I like to think that the opposition was more broadly based. I place myself firmly in the camp of those who believe that Chevron was wrong, and who view it as an abdication of the function of judicial review con- ferred by the Constitution and by the Administrative Procedure Act. As one who practices both before the Supreme Court and in the area of administrative law, I have special concerns about the wisdom of repos- ing trust in administrative agencies with respect to issues of statutory construction. This mistrust arises from several sources. (1) The political agenda of the Executive Branch is largely controlling at administrative agencies. This influence stems in part from the ability of the incum- bent administration to appoint agency chairmen and their role in setting the agency agenda, appointing staff, and formulating policy. The Executive Branch's enormous influence also stems in part from the tend- ency of many agency members to resign whenever there is a change in administrations, particularly a change from one political party to another. Their av- erage tenure in 1977 was only 4.3 years. Another reason stems from the ambition of many agency members for higher office. This desire extends not only to the agency members who belong to the Pres- ident's party but to those of the other party as well. A study by the Senate ; Issue Committee on Govern- ment Operations in 1977 .3 observed that each major es the party fills minority vacan- e Law ...........4 cies with Friendly In- ......... 5 dian appointments - . ........ 6 persons who are very .........Pull-out proswoaevr ...... .9 sympathetic to the admin- .............. .......10 istration despite party af- nference ............ 16 filiation and who identify (continued on page 13) Copyright © 1991 American Bar Association loE trat( Itivf )ry st Cop Produced by the ABA Press

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